Section 389(1) CrPC | Bail Granted To Accused Cannot Be Cancelled Merely Because His Advocate Sought Adjournment: Supreme Court

The Supreme Court observed that a bail granted under Section 389(1) of Code of Criminal Procedure cannot be cancelled without giving the accused a reasonable opportunity to be heard.

"The Appellate Court cannot penalize the accused by proceeding to cancel his bail only on the ground that his advocate has sought adjournment and that also without giving an opportunity of being heard to him on the issue of cancellation of bail." the Bench comprising Justice Abhay S. Oka and Justice Pankaj Mithal observed.

The Appellant was convicted under Section 6 of the Protection of Children from Sexual Offences Act, 2002 (POCSO Act). The Appellant approached the High Court, whereby the substantive sentence was suspended and he was enlarged on bail. On 7th July, 2023, this Criminal Appeal was called out for hearing. The Advocate for the appellant sought adjournment for four weeks. Only on the ground that the appellant is enjoying the facility of bail and that his advocate applied for adjournment, the High Court proceeded to cancel the bail. Aggrieved with this, the Appellant approached the Apex Court by way of a Criminal Appeal.

Advocate B. Karunakaran appeared for the Appellant and Advocate Joseph Aristotle S appeared for the Respondent/State.

The Apex Court noted that if the advocate appearing for the appellant-accused seeks adjournment on untenable and unreasonable grounds, the Appellate Court is well within its power to refuse the prayer for adjournment.

"In such a case, ..the High Court has a discretion to appoint an advocate to espouse the cause of the appellant when the advocate appointed by the appellant refuses to argue the appeal on unreasonable grounds. Though the High Court has an option of considering the merits of the appeal and deciding the same on merits, the High Court could always adopt the first course of appointing an advocate to espouse the cause of the appellant", the bench said.

The Bench observed that when an appellant-accused who is imprisoned has their sentence suspended under sub-section 1 of Section 389, the Appellate Court must release them on bail until the appeal is finally disposed of. The second proviso to sub-section 1 of Section 389 allows the Public Prosecutor to apply for cancellation of the bail granted under sub-section 1. This proviso is equivalent to sub-section 2 of Section 439 of CrPC. The Court noted that it has the power to issue a notice on its own and ask the accused to explain why their bail should not be canceled. The bail granted to an accused under sub-section 1 of Section 389 cannot be canceled without giving them a reasonable opportunity to be heard.

The Court observed that the High Court canceled the accused's bail without giving him a chance to be heard, which is unacceptable. The Court ought to have dealt with the situation if the accused's lawyer had requested an adjournment. The accused cannot be penalized for his advocate's default. The Appellate Court cannot cancel his bail just because his advocate asked for an adjournment, the Court added.

The court noted that if the advocate appearing for the appellant-accused seeks adjournment on untenable and unreasonable grounds, the Appellate Court is well within its power to refuse the prayer for adjournment.

"In such a case, ..the High Court has a discretion to appoint an advocate to espouse the cause of the appellant when the advocate appointed by the appellant refuses to argue the appeal on unreasonable grounds. Though the High Court has an option of considering the merits of the appeal and deciding the same on merits, the High Court could always adopt the first course of appointing an advocate to espouse the cause of the appellant",

Furthermore, the Court asserted that the High Court has rejected an application for suspension of sentence only because the advocate for the accused refused to argue the appeal on its merits. The advocate for the accused is not expected to be ready to argue the appeal when only an application for suspension of sentence is listed for a hearing.

Accordingly, the Court allowed the Appeal and set aside the impugned order.

Cause Title: Purushothaman v State Of Tamil Nadu (2023 INSC 970)

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